Antitrust Criminal Sanctions: The Evolution of Executive Punishment

Judge Douglas H. Ginsburg and Professor Joshua D. Wright’s excellent study of antitrust sanctions for corporations and individuals concludes with a strong recommendation that individual penalties, specifically incarceration, will be the most appropriate and effective penalties for antitrust violations. This article will analyze the punishment of defendant executives as it has evolved during the era of international cartel enforcement (1995 to 2010) and will conclude that, although it was slow to get there, the current enforcement policy and practice focuses much more directly on the defendant executive that if ever has and is approaching the Ginsburg-Wright model as the major deterrence factor.  The article also argues that both the Antitrust Division and corporate compliance training must inform the corporate executives much more effectively of the harsh penalties executives will face if they violate the law.  Finally, the article reviews several activities that may cause defendant executives greater risk during an antitrust investigation and provides important advice to the executives, counsel, and board members to navigate around those serious risks.